“Grave” problems ahead

“Grave” Problems Ahead:  Looting Assets of the Dead and Disabled
Lou Ann Anderson
March 8, 2008
Grave robbers.  Tomb raiders.  Cronies who plunder and rape estates.  These are characterizations used to describe experiences in probate systems across the U.S.   Guardianships, trusts and wills are vehicles commonly used to perpetrate Involuntary Redistribution of Assets (IRA) actions.  Trusts and wills can lead to modern day grave robbing, guardianships can allow looting of an individual’s assets during their lifetime.

Whether outside a legal venue or with full oversight of the courts, age and/or incapacitation increases the potential for IRA targeting.  IRA practitioners can be a known, trusted family member or friend or a stranger who works their way into a person’s life gaining their confidence along the way.  It can involve lawyers, accountants, “professional” administrators or guardians, caregivers and others.

People knowledgeable of the probate business tell how making a living off the extraction of estate assets is an organized industry.  How tragic to realize a lifetime spent accumulating assets and then clearly designating their final distribution can position one’s rightful heirs as targets for Involuntary Redistribution of Assets practitioners.  Incapacitation or death should not signal “open season” on assets.  It should not mean that when a person can no longer speak for him/herself, their wishes should be disregarded with the fruits of their labor awarded to parties unconstrained by ethics and adept at manipulating our legal system.

“Proper estate planning” is not an IRA inoculation.  Those commissioned to document and execute final wishes sometimes become key figures in asset looting.  An estate with limited resources provides no immunity.  Wealth is relative.  Modest estates can be appealing as IRA practitioners value parties who can be intimidated or convinced the prospect of a legal battle is cost prohibitive.

Involuntary Redistribution of Assets cases often stem from a guardianship, trust or will.  Appointment of a guardian to oversee an individual’s affairs is a common IRA starting point.  Per the National Association to Stop Guardian Abuse, “In seeking to navigate the guardianship system, families too often experience frustrations in attempts to find assistance and to obtain justice in a seemingly unjust legal system.  Legislative statutes are totally ineffective when judges and law enforcement agencies ignore them. Government organizations as well as many attorneys are inexperienced in this fairly new area of law.  Many lawyers are also unable or unwilling to take on seemingly futile cases in which the client has little or no money to pay fees while the guardian is draining the same family’s assets to pay for their own legal representation.”

Our legal system is “pay to play” with advantage going to those who subsidize the court system.  IRA participants can incite a court case, lose and still “win” by collecting attorney and
administrative/management fees “legitimately” generated during judicial proceedings.  Family members learn it’s often useless to exhaust themselves emotionally and financially while trying to fight in a legal system theoretically designed to protect the people it’s destroying.

Attorneys tout living trusts as flexible estate planning documents and a means by which to minimize legal fees.  If commitment to executing the trust founder’s stated wishes is absent, today’s legal system and moral environment offer opportunity for IRA “gamesmanship.”   In this context, estate arrangements, final wishes or asset bequests can undergo a complete redistribution in no way reflective of the founder’s plan.

A trust is generally a private legal instrument receiving no court oversight.  Trust “theory” uses language that outlines the trustee’s fiduciary responsibilities to the beneficiaries.  Trust management validity is commensurate to the trustee’s integrity and desire for honest interaction. If a trustee is viewed as having breached responsibilities, beneficiaries can initiate a legal proceeding.  Trustee expenses are paid from the trust, beneficiaries pay their own.  The financial and emotional toll can be brutal.  Throughout extended legal action, IRA practitioners can also use trust assets to compensate themselves for time spent on efforts contrary to the beneficiaries’ interests.

Estates (via wills) or trusts of any amount can be attractive to IRA practitioners.  As prolonged litigation easily runs into six-figure expenditures for each side, IRA targets often recognize the absence of cost effectiveness in going to court.  Much can be spent with little or nothing gained.  Involuntary Redistribution of Assets practitioners target and maximize these opportunities.

Involuntary Redistribution of Assets (IRA), a process in which unscrupulous individuals use death or disability to gain control of assets for “redistribution” in a manner contrary to the property owners’ intentions, can happen during the person’s lifetime or posthumously.  As more cases occur and affect people throughout the economic spectrum, “shining light on the dark side of estate management” is an important move toward serious and impactful public dialogue that will hopefully lead to policy changes designed to shut down IRA practitioners and return integrity to the arena of estate management and the probate process.

This column is an adaptation of a previous piece entitled “’Grave’ Problems in Texas.” The original column is archived at http://www.estateofdenial.com/?p=283.  Lou Ann Anderson is an advocate working to create awareness (www.EstateofDenial.com) regarding the Texas probate system and its surrounding culture.  She may be contacted at info@estateofdenial.com.

Share
Commentary